Emmanuel Joseph vs Republic (Criminal Appeal No. 276 of 2021) [2024] TZCA 786 (20 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MKllYE. J.A.. KITUSI J.A. And ISSA. J.A.1 CRIMINAL APPEAL NO. 276 OF 2021 EMMANUEL JOSEPH................................................................... APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Ismail. J.1 dated the 20th day of January, 2021 in Criminal Appeal No. 124 of 2019 JUDGMENT OF THE COURT 13* & 20* August, 2024 ISSA. 3.A.: The appellant, Emmanuel Joseph was tried and convicted by the District Court of Ukerewe at Nansio (the trial court) for the offence of unnatural offence contrary to sections 154 (l)(a) and (2) of the Penal Code, Cap. 16. Upon convicting the appellant, the trial court imposed a sentence of life imprisonment. The arraignment of the appellant before the trial court was a result of an accusation that, on 18th January, 2019 at night hours at Nabweko Village within Ukerewe District in Mwanza Region, the appellant had carnal knowledge of a 7 years old boy against the order of nature. We shall call

the boy XY or victim to hide his identity. The appellant pleaded not guilty to the charge. The prosecution fielded four witnesses to prove the charge. After a full trial the appellant was convicted as charged and sentenced as stated earlier. The brief facts of the case as found by the trial court and confirmed by the first appellate court were that, at night hours of 18th January, 2019 XY who testified as PW3 was at home with his mother, Bisunga Ndumbilo (PW4). The appellant who is commonly known as Emma was their neighbour and a friend. On that fateful day the appellant went to the victim's house and asked for permission from PW4 to take the victim to the shop so that he can buy him a soda. Upon obtaining the permission, he took the victim to the mountain instead of a shop. After a long wait, PW4 became worried and she followed them. While on the way, PW4 heard the victim crying and when she got closer, she noticed that the victim was laid down on the ground naked and the appellant was on top undressed and he was carnally knowing the victim against the order of nature. PW4 screamed for help and pushed the appellant several times. The victim was severely damaged on his anus and the feces and blood were coming out uncontrollably. The villagers responded to the alarm and could not control themselves when they saw the injuries caused to the

victim. They beat the appellant and later took him to hamlet chairman where he was locked up. PW4 and hamlet chairman reported the matter at the Nansio Police Station where the victim was given PF3 to go to the hospital. A medical examination was carried out by Alphonce Masatu (PW2) who found stool and blood coming out from the victim's anus. He also observed that there was a cut between the anus and the penis and the blood was coming out. He concluded that something bigger than a stool was inserted which caused the cut. G 3169 D/C Felix was the policeman who received the victim, PW4 and hamlet chairman at the police station. He also went to Iwegoba island to take the appellant after he was arrested. The appellant, in his defence, denied having committed the offence. He testified that on the fateful day he was in the lake fishing and was not aware of what happened. He added that he met PW4 on the way and she ordered those that were at the scene of the crime to beat him as he was involved in the incident. The trial court found the prosecution evidence sufficient to sustain the charge. Its findings were supported by the evidence of the victim and it was corroborated by the evidence of PW4 who caught the appellant in flagrante delicto and PW2, the clinical officer. On the strength of that

evidence the trial court convicted and sentenced the appellant to life imprisonment. The appellant lodged an appeal to the High Court at Mwanza (the first appellate court) in Criminal Appeal No. 124 of 2019 which sustained the appellant's conviction, sentence and dismissed the appeal. Undaunted, the appellant has instituted the instant appeal. Initially, the appellant lodged a memorandum of appeal containing four grounds which are rephrased as follows: One, the evidence of the victim was taken contrary to section 127(2) of the Evidence Act as no voire-dire was conducted to test the intelligence of the victim. Two, the PF3 was admitted in evidence without being read out. Three, the evidence of PW2 was recorded unlawfully as he was not listed in the preliminary hearing and leave was not sought and granted to call additional witness. Four, the case was not proved beyond reasonable doubt considering the unfavourable identification conditions. At the hearing, the appellant lodged a supplementary memorandum of appeal containing four grounds. For the reason that will be clear shortly, we will not reproduce the grounds except the second ground which is rephrased as follows: the 1st appellate court erred to dismiss the appeal without considering the error committed by the trial court when it said PW1 was an eye-witness while he was a

police officer who adduced hearsay evidence told by PW3 and PW4. Therefore, there was non-compliance with section 62 of the Evidence Act. When the appeal was called on for hearing, the appellant appeared in person and was fending for himself. He adopted his grounds of appeal and had nothing of substance to add, hence, he allowed the respondent Republic to submit first with the leave to rejoin if a need arises. The respondent who was represented by Ms. Mwanahawa Changale, learned Senior State Attorney submitted that the 1st and 4th grounds in the supplementary memorandum are similar to the 1st and 4th grounds in the memorandum of appeal, hence she will argue each pair together. Regarding, the second grounds in the memorandum and supplementary memorandum she submitted that they will be argued separately. With respect to the 3rd grounds in both memorandum and supplementary memorandum, she submitted that they are new grounds which were not raised at the High Court. Hence, the appellant cannot raise them at this Court. She urged us not to consider those grounds of appeal. On our part, we agree with Ms. Changale that before the High Court, the appellant preferred three grounds: he faulted the identification of the appellant, that PF3 was not corroborated and that the prosecution was not proved beyond reasonable doubt. But before this Court the appellant

had raised four grounds in the memorandum of appeal and four grounds in the supplementary memorandum, of which grounds three were new in both memorandum and supplementary memorandum. This Court, in Idrisa Omary v. Republic (Criminal Appeal No. 554 of 2020) [2021] TZCA 448 (27 August 2021, TANZLII) made the position of law very clear on raising new grounds of appeal at the second appeal. It stated: "Section 4(1) o f the Appellate Jurisdiction Act, Cap. 141 R.E. 2019 (AJA) read together with Rule 72(2) o f the Tanzania Court o f Appeal Rules, 2009 (the Rules), the Court has no power to deal with grounds which were not raised before the first appellate Court unless they involve points o f law ." Further, in our earlier decision in Galus Kitaya v. The Republic (Criminal Appeal No. 196 of 2015) [2016] TZCA 301 (15 April 2016, TANZLII) we made a similar observation as follows: "...usually the Court w ill look into m atters which came up In the lower courts and were decided. It w ill not look into matters which were neither raised nor decided either by the tria l court or the High Court on appeal."

Therefore, based on this principle, we decline to entertain the 3rd grounds as they are new and are based on factual issues. Ms. Changale proceeded to argue the 1st grounds together. She admitted that voire-dire was not done. She said there is no necessity to ask questions in order to comply with section 127(2). What is required is that, the victim should promise to tell the truth. In the instant case, the victim did promise to tell the truth, hence, section 127(2) was complied with. We agree with Ms. Changale that, after the amendment made on the Evidence Act by Act No. 4 of 2016 voire-dire was no longer an essential requirement before recording the evidence of a child of tender years. Section 127(2) of the Evidence Act reads: • "127(2) A child o f tender age may give evidence without taking an oath or making an affirm ation but shall, before giving evidence, prom ise to te ll the truth to the Court and not to te ll any lie s." This provision was couched on a permissive term. It allows a child of tender age to take an oath or make an affirmation when he understands the nature of oath, but if he does not, he may give evidence upon promising to tell the truth and not to tell lies.

In the instant case, the victim is a boy of tender age and is, therefore, exempted by section 127(2) of the Evidence Act from taking oath. In Issa Salum Nambaluka v. The Republic (Criminal Appeal No. 272 of 2018) [2020] TZCA 10 (21 February 2020, TANZLII) the Court stated: "From the plain meaning o f the provisions o f subsection (2) o f s. 127 o f the Evidence Act... a child o f tender age may give evidence after taking oath or making affirm ation or without oath or affirm ation. This is because the section is couched in perm issive terms as regards the manner in which a child witness may give evidence." Therefore, the 1st grounds of appeal are found meritless and we dismiss them. With respect to the 2n d ground in the memorandum of appeal, Ms. Changale admitted that PF3 (exhibit PI) was not read out at the trial court, but she said this issue has been dealt with by the 1st appellate court which on page 73 of the record of appeal has removed PF3 from the record. She, therefore, submitted that this ground was determined by the 1st appellate court. We agree with Ms. Changale that this ground is misconceived as the issue that PF3 was admitted without being read over was determined by

the 1st appellate court which discounted the PF3. Therefore, this ground is also dismissed for lack of merit. With respect to the 2n d ground on the supplementary memorandum, Ms. Changale submitted that section 62 of the Evidence Act, Cap. 6 talks about oral evidence and it says it must be direct. In the instant case, PW1 witnessed the blood coming out of the victim's anus, but did not witness the appellant sodomising the victim. Glancing at the testimony of PW1 at page 7 of the record of appeal, the Court agrees with the appellant that PW1 narrated what he was told by PW4 and PW3. What he said was a hearsay, but on the same page PW1 testified that he saw the injuries on the victim and he said: "I inspected the child and there was some blood, I gave him PF3 for examination". This statement does not make him an eye-witness to the charge of unnatural offence, but he is an eye-witness with respect to the victim's injuries. Whatever the case, the conviction of the appellant was not based on the evidence of PW1, it was based on the evidence of the victim, PW4, the mother of the victim who caught the appellant red- handed committing the unnatural offence and PW2 who medically examined the victim and concluded that, the victim had been carnally known against the order of nature. Therefore, this ground of appeal is meritless and we dismiss it.

In the last grounds of appeal, the appellant faulted the trial court for convicting him while the charge was not proved as the identification J of the appellant was not proper. Ms. Changale, on the other hand, insisted that the charge was proved to the hilt. Firstly, she said this is not a case of identification as the appellant was well known by the occupants in the victim's house. On that fateful evening, he went to take the victim from the house in order to buy him soda, instead he went ahead and commit this heinous crime against the victim. Therefore, there was no issue of identification. She relied on the Court's decision in Felix Majuga v. The Republic (Criminal Appeal No. 509 of 2020) [2022] TZCA 695 (9 November 2022, TANZLII) where it stated that when the appellant is arrested while committing the crime, the issue of identification does not arise. Secondly, she argued that the victim himself narrated how the appellant abused him, and PW4, the victim's mother found the appellant committing the said offence. Therefore, there are two eye-witnesses and their evidence was further corroborated by PW2. She added that the witnesses were all credible and the trial court was in a better position to assess the credibility of those witnesses. To support the point, she cited the case of John Mohamed v. The Republic (Criminal Appeal No. 144 of 2021)[2024] TZCA 560 (15 July 2024, TANZLII). 10

In the rejoinder, the appellant did not have much to say. He said he has not committed the offence and implored the Court to set him free. We agree with Ms. Changaie that this case does not involve the issue of identification, it is a case of recognition. The appellant was well recognised by the victim and PW4. He was a friendly neighbour who often took the victim to the shop and bought him soda. Unfortunately, on that fateful day the friendly neighbour turned into a beast and ravished the victim. Further, the appellant was caught committing the offence and as we said in Daffa Mbwana Kedi v. The Republic (Criminal Appeal No. 65 of 2017) [2019] TZCA 5 (18 February 2019, TANZLII): where an accused is arrested a t the scene o f crime his assertion that he was not sufficiently identified should be rejected. Therefore, the issue that the appellant was not properly identified is hereby rejected. Moreover, the evidence against the appellant was watertight. The victim narrated the incident of how he was sodomised by the appellant and PW4 caught the appellant red-handed sodomising his son. Further, he was arrested at the scene by angry villagers who beat him before they handed him over to the hamlet leader. The arrest was made and the appellant was arraigned to the trial. The evidence was straightforward and we agree with the concurrent findings of the two lower courts. 11

Therefore, we are satisfied that the case against the appellant was proved to the hilt. Eventually, we find this appeal meritless and we dismiss it in its entirety. DATED at MWANZA this 20th day of August, 2024. R. K. MKUYE JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 20th day of August, 2024 in the presence of the Appellant who appeared in person and Ms. Brenda Mayalla learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.